Brock v. Bechtel Power Corp.
| Decision Date | 30 October 1986 |
| Docket Number | No. 85-7661,85-7661 |
| Citation | 803 F.2d 999 |
| Parties | 12 O.S.H. Cas.(BNA) 2169, 1986-1987 O.S.H.D. ( 27,732 William E. BROCK, Secretary of Labor, Petitioner, v. BECHTEL POWER CORPORATION, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
John Shortall, U.S. Dept. of Labor, Washington, D.C., for petitioner.
Russell J. Thomas, Jr., Detroit, Mich., for respondent.
Petition to Review a Decision of the Occupational Safety and Health Review Commission.
Before CHOY, ALARCON and BEEZER, Circuit Judges.
William E. Brock, the Secretary of Labor (hereinafter Secretary), appeals from the decision of the Occupational Safety and Health Review Commission (hereinafter Commission) vacating a citation charging Bechtel Power Corporation (hereinafter Bechtel) with a violation of 29 C.F.R. Sec. 1926.550(a)(9) (1985). This occupational safety standard requires accessible areas within the swing radius of the rear of the rotating superstructure of a crane to be barricaded in such a manner as to prevent an employee from being struck or crushed by the crane. The issue in this case is whether the standard set forth in 29 C.F.R. Sec. 1926.550(a)(9) applies to the crane operator and oiler who must work inside the barricaded area. We deny the Secretary's petition for review and affirm the Commission's order vacating the citation. The Secretary's position that 29 C.F.R. Sec. 1926.550(a)(9) was violated by Bechtel's practice of instructing oilers to work inside the barricade is not supported by the plain language of the standard.
This court has jurisdiction to review the Commission's order pursuant to 29 U.S.C. Sec. 660(b) (1982).
We must uphold the Commission's decision unless it is arbitrary and capricious, not in accordance with the law, or in excess of the authority granted by the Occupational Safety and Health Act, 29 U.S.C. Secs. 651-678 (hereinafter the Act). Phelps Dodge Corp. v. Occupational Safety & Health Review Commission, 725 F.2d 1237, 1239 (9th Cir.1984) (citing Donovan v. Castle & Cooke Foods, 692 F.2d 641, 645 (9th Cir.1982)). Generally, substantial weight is accorded to the Secretary's interpretation of his own regulation, when affirmed by the Commission. Castle & Cooke, 692 F.2d at 646. However, in a case such as this, where the Secretary and the Commission disagree as to the meaning and application of the regulation, the court need not grant such deference to the Secretary's interpretation. Id. In Marshall v. Anaconda Co., 596 F.2d 370 (9th Cir.1979) we stated that "[a]lthough we have recognized that the Secretary's interpretation of his own regulation, when affirmed by the Commission, must be accorded substantial weight, it carries much less weight when at odds with the Commission's." Id. at 374 (citation omitted). Instead, we will defer to the Commission's expertise in exercising the independent adjudicatory function assigned it by the Act because "it is the Commission and not the Secretary which is charged with the final administrative adjudication of the Act. 29 U.S.C. Sec. 659." Brennan v. Occupational Safety & Health Review Commission, 513 F.2d 713, 715-16 (8th Cir.1975); 29 U.S.C. Sec. 651(b)(3) (); Donovan v. A. Amorello & Sons, Inc., 761 F.2d 61, 62-66 (1st Cir.1985) (collecting cases); but see Brock v. Schwarz-Jordan, Inc., 777 F.2d 195, 197 (5th Cir.1985) () (quoting Brennan v. Southern Contractors Service, 492 F.2d 498, 501 (5th Cir.1974)) (emphasis in original). Congress limited the Secretary's statutory role to promulgating, modifying, revoking and enforcing occupational safety or health standards, see 29 U.S.C. Secs. 655, 659, and not to adjudicate a challenge to a citation. The statute gives to the Commission the power to affirm, modify, or vacate the citation or proposed penalty, or to direct other appropriate relief. 29 U.S.C. Sec. 659(c).
The Secretary contends that our holding in Castle & Cooke--that where the Secretary and the Commission disagree as to the meaning and application of a regulation, we need not grant deference to the Secretary's interpretation, 692 F.2d at 646--is inconsistent with Cuyahoga Valley Railway Co. v. United Transportation Union, --- U.S. ----, 106 S.Ct. 286, 88 L.Ed.2d 2 (1985) (per curiam) and Dale M. Madden Construction v. Hodgson, 502 F.2d 278 (9th Cir.1974). We disagree.
In Cuyahoga Valley, the Secretary cited a railroad for a violation of the Occupational Safety and Health Act, 29 U.S.C. Sec. 657(a), and the railroad contested the citation. 106 S.Ct. at 287. At a hearing before an Administrative Law Judge (hereinafter ALJ), the Secretary moved to vacate the citation on the ground that the Federal Railway Administration, not the Secretary, had jurisdiction over the safety conditions. The United Transportation Union objected. The ALJ granted the motion. Id. The Commission directed review of the ALJ's order and remanded the case to the ALJ for consideration of the union's objections. Id. The Court of Appeals for the Sixth Circuit affirmed the Commission's holding that it could review the Secretary's decision to withdraw a citation. Donovan v. United Transportation Union, 748 F.2d 340 (6th Cir.1984). The Supreme Court reversed the court of appeals and held that the Commission's "authority plainly does not extend to overturning the Secretary's decision not to issue or to withdraw a citation." 106 S.Ct. at 288. The Supreme Court did not address the issue concerning the deference owed the Secretary's interpretation of the meaning and application of a regulation where it is at odds with the Commission's interpretation.
Similarly, in Dale M. Madden Construction, the construction company petitioned this court for review of a decision of the Commission. 502 F.2d at 278. After we assumed jurisdiction, the Secretary "agreed to accept $150 in consideration for dismissal of Madden's petition." Id. at 280. The Commission then intervened to oppose the Secretary's motion for approval of the settlement. Id. at 279. We held that the Commission "may not contest settlements made by the Secretary." Id. at 281. Instead, "[t]he administrative structure limits the Commission to adjudication." Id. We did not consider the standard of review to be applied when the Commission's interpretation of a regulation differs from the Secretary's interpretation. Thus, Cuyahoga Valley and Dale M. Madden Construction are inapplicable to the matter before us and are not inconsistent with Castle & Cooke.
The facts of this case are not in dispute. The alleged violation of section Sec. 1926.550(a)(9) occurred at a construction site in Colstrip, Montana, where Bechtel was building a coal-fired power plant. Bechtel was using five cranes in the construction work, including a Manitowoc 4000 crawler crane.
Each crane has a two-member crew, an operator and an oiler. The operator sits in the upper part of the crane, called the superstructure. The lower part of the crane, which includes the crawler tracks, is called the car body. The superstructure can rotate while the car body remains stationary. An oiler assists the operator and performs functions essential to the crane's operation. The oiler is responsible for erecting the rope-and-flag barricade around the crane, lubricating the crane and its moving parts, assisting the operator in determining when the crane's boom is clear so that loads can be moved, and keeping the crane clean, including its tracks. The oiler watches the crane's tracks in certain circumstances to warn the operator if the crane is starting to tip. The oiler also spends some time working with the operator in the cab to gain the requisite experience to become a crane operator.
A rope-and-flag barricade was strung around the entire perimeter of the crane in question at approximately a seven foot distance. This barricade was supported by poles which protruded from each of the four corners of the track. There is no dispute that the barricade was consistent with Occupational Safety and Health Administration (hereinafter OSHA) standards and accepted industry practice.
Under the policy in effect at the time of the accident, Bechtel required crane oilers to work within the barricaded area. The lubrication activities could be performed by the oiler only if he were inside the barricaded area in direct contact with the crane.
On June 24, 1980, Jeff Brown, a crane oiler, was fatally injured while working within the barricade at the rear of the Manitowoc 4000. The accident occurred when the crane oiler was caught between the inner rear side of the crane's left crawler track and the rotating superstructure as the crane's boom swung from the front to the right.
On July 29, 1980, Bechtel was cited by the Secretary for a serious violation of 29 C.F.R. Sec. 1926.550(a)(9), following an inspection of the construction site by a compliance officer for OSHA. Bechtel contested the citation and the Secretary issued its complaint on September 4, 1980. ALJ Raymond M. Child heard the case on December 18-19, 1980 and assessed a monetary penalty and affirmed the citation by decision and order dated April 6, 1981. The Commission granted Bechtel's petition for discretionary review, and on October 2, 1985, vacated the citation.
The safety standard set forth in 29 C.F.R. Sec. 1926.550(a)(9) provides in pertinent part:
Accessible areas within the swing radius of the rear of the rotating superstructure of the crane, either permanently or temporarily mounted, shall be barricaded in such a manner as to prevent an employee from being struck or crushed by the crane.
The ALJ determined that the barricade is intended to keep...
To continue reading
Request your trial
-
United Steelworkers of America, AFL-CIO-CLC v. Schuylkill Metals Corp.
...584 F.2d 127, 132 (6th Cir.1978); Brennan v. OSHRC and Ron M. Fiegen, Inc., 513 F.2d 713, 715-16 (8th Cir.1975); Brock v. Bechtel Power Co., 803 F.2d 999, 1000 (9th Cir.1986).The Third Circuit defers to neither the Secretary nor the Commission when they advance alternative interpretations, ......
-
Martin v. Occupational Safety and Health Review Commission
...(same), with Brock v. Cardinal Industries, Inc., 828 F.2d 373, 376, n. 4 (CA6 1987) (deference to Commission); Brock v. Bechtel Power Corp., 803 F.2d 999, 1000-1001 (CA9 1986) (same); and Marshall v. Western Electric, Inc., 565 F.2d 240, 244 (CA2 1977) 5 The parties do not challenge the Cou......
-
United Steelworkers of America, AFL-CIO-CLC v. St. Joe Resources
...891 F.2d 1495, 1498 (10th Cir.1989), cert. granted, --- U.S. ----, 110 S.Ct. 3235, 111 L.Ed.2d 747 (1990); Brock v. Bechtel Power Corp., 803 F.2d 999, 1000-01 (9th Cir.1986); Usery v. Hermitage Concrete Pipe Co., 584 F.2d 127, 132 (6th Cir.1978); Marshall v. Western Electric, Inc., 565 F.2d......
-
Dole v. Occupational Safety and Health Review Com'n
...and Health Act). In contrast, the Second, Fourth, Sixth, Eighth and Ninth Circuits defer to the Commission. See Brock v. Bechtel Power Corp., 803 F.2d 999, 1000-01 (9th Cir.1986); Usery v. Hermitage Concrete Pipe Co., 584 F.2d 127, 132 (6th Cir.1978); Marshall v. Western Electric, 565 F.2d ......